When it comes to unduly restrictive language and government protests, to prevail in litigation, you first must understand the parameters in which the government contract write its requests for proposals.
Many contractors wonder whether the government can unduly restrict competition. “Unduly restrictive Solicitations” means that you are challenging both the restrictive language and nature of the requirement or solicitation as well as the agency’s need for the restriction.
Your ability to recognize a restrictive requirement in the government’s RFP increases your chances if you do decide to challenge it.
Avoid the costly legal mistake of not filing a pre-award protest to correct the problem. 33% of protestors wait until after the award is made. This is too late.
While agencies cannot unduly restrict their requirements, they can impose reasonable restrictions in a Request for Proposals (“RFP“). However, they have to jump through legal hurdles to justify it. If an unduly restrictive condition is found, the Government Accountability Office (“GAO”) recommends that the RFP be amended.
Unduly Definition & Legal Standard
As the protestor, if you challenge a solicitation requirement as unduly restrictive of competition, the agency then has to prove that the restrictive solicitation is reasonably necessary to meet its needs. The agency’s justification will be considered acceptable if the explanation is reasonable and if it can withstand logical scrutiny. If the agency properly explains the challenged restrictive language, then you must show that it is clearly unreasonable.
If the protestor merely disagrees with the agency’s judgment concerning its needs, that alone will not prove that the requirement is unreasonable. Additionally, even if the requirement is burdensome or even impossible for a protestor to meet, that does not make it unreasonable or objectionable if the requirement properly reflects the agency’s needs. It’s all about showing that the agency did not meet the legal standard.
Unduly Definition — Agencies can Reasonably Restrict Solicitation Requirements in RFPs
When challenging the definition of unduly, keep in mind that an agency has the discretion to reasonably restrict competition through certain criteria in the RFP so long as the criteria are needed to meet the agency’s minimum needs. See FAR 11.002(a)(ii).
A balance with CICA is needed. The Competition in Contracting Act of 1984 (CICA) requires that solicitations permit full and open competition; restrictive language and solicitation provisions are allowable only to the extent necessary to satisfy the agency’s needs and the government’s interests.
Uduly restrictive language and government protest requirements: A contracting agency generally has the discretion to determine its own needs and how to best accommodate them. There have, however, been a few recent cases where a protest on the grounds that a requirement is unduly restrictive of competition has been sustained. See also government contract bundling rules.
Example: In Desktop Alert, Inc., the GAO sustained a protest where the solicitation limited competition to brand name items. The protestor noted that the solicitation did not describe the reason for this requirement and the solicitation was unduly restrictive because it did not permit other potentially qualified vendors to compete.
The agency did not explain why brand name was required nor did it adequately research the products offered by off-brand vendors. Because of this, the solicitation was found to be overly restrictive.
Similarly, in Iyabak Construction, LLC, an unduly restrictive protest was sustained because the agency did not provide sufficient justification for its restriction. The RFP contained a restriction that limited consideration of past performance to the offeror itself, and said that it would not consider an affiliate’s experience or past performance.
- The agency attempted to explain the restrictive solicitation requirements by referring to problems it experienced in the past when it considered affiliate’s past performance.
The GAO noted that this explanation did not address the solicitation at hand nor did it address why it would not consider affiliate’s past performance when they have committed to participate meaningfully in contract performance. See also How A Small Business Won Their GAO Protest of Berry Amendment Restrictive Solicitation Requirements.
How to handle unduly restrictive language and government protest cases. It is important to know that you will not be able to challenge a requirement failing the “unduly restrictive” definition unless you can show that the agency cannot meet the legal standard set forth in protest litigation rules.
Don’t forget: In order to challenge a solicitation, you must be an interested party; this can be met where your economic interests are prejudiced by the alleged overly or unduly restrictive solicitation. Given the short timeline for bid protests, it is crucial to act quickly!
If you need help with a bid protest for unduly restrictive solicitation requirements, please call us to speak with any of our Federal Government Contract Attorneys at 1-866-601-5518 for a free consultation.